Legal Case Summary

You went for the day. You must say, versus Osper. It's good off you enjoyed it so much you decided to stay here. It proves that double headers have not been abolished. Right. Not a well-tested district, a pencil lady. Pets several double headers over my 16 years. It's always enjoyable. Make please the court. Your honor is good morning. For the record, my name is Karen, serianny Gerlock, and I am the attorney for the appellant in this case, Mr. David Osper. At this point, I ask the court's permission to reserve three minutes of rebuttal. Thank you, your honor. In this case, the district court imposed a sentence of 12 years. That 12-year sentence represented an upward variance two times greater than the uppermost end of the advisory guideline range of 57 to 71 months. The case laws are very clear that when the sentence variances are so substantially greater than the advisory guideline range, they warrant extra scrutiny. The purpose of the extra scrutiny is twofold. Who the least extra scrutiny? This course. The purpose of that extra scrutiny is twofold. It must be determined first of all whether there were compelling, quote-unquote, compelling facts and circumstances to support a variance so great. Second of all, it must be determined whether the district court has provided an adequate explanation of why a guideline sentence within the advisory range would not serve the goals of 3553A. The record here under extra scrutiny or even a very surface superficial scrutiny does not show either of these two factors. The sum total of what the district court said as its rationalization and justification for some greater variance was that first of all Mr

. Osperm was a police officer. So is the thrust of your attack on the substantive reasonableness or unreasonableness of the sentence? Yes, it is your honor. Because I fully expected you to lead off with your due process right to advance notice argument. That is a big part of your honor because when the variance is not going to require notice. You would agree that would you not have the fair point of view? I personally believe that the vampire nation case is not squarely on all fours with this. Well, it is not squarely on all fours because we did not deal with a new process issue. Exactly. We dealt with rule 32. Exactly. In rule 32h says specifically, Departure's quote unquote, it doesn't speak of variances. So this court found an empire nation that in the instance of upward variances that rule 32h doesn't require notice. It didn't address the due process situation. I'm sorry to have just wanted to. You know all the courts are on the table and when you know if you set the whole question, I remember writing it not about the presidential thing saying there's going to be cases when it's not so easy to tell whether there was a variance or a portrait. But that particular case that just said variance. But you know all the courts are on the table. You do not anymore than you know for a departure. The guy lying around. Booker didn't change the scenery and entire landscape enough that when you walk in with a client, you don't think you can, you don't advise him or her that the nearest guy is the limit. Anything can happen here. If the court will indulge me for one moment, may I propose a hypothetical which feels straights? Why is this so dangerous and frightening? We had victim statements at the sentencing. Council received very late notice of the victim statements. Imagine this scenario

. The victim impact statements came from the girl's father and her guardian. Imagine a scenario where the guardian and the father had come into court and said to the judge, Mr. Osberg impregnated this girl. Mr. Osberg gave this girl a sexually transmitted disease. Mr. Osberg's nudging defense counsel saying, I've had a bad sent to me. I could not have been prednated her. I don't carry any sexually transmitted diseases. And my doctor could prove all this. Defense counsel jumps up and says, your honor this is impossible. We need to continue. We need to get a doctor and we don't have any notice. And Judge Schwab could have very easily said too bad. All right. Well, that clearly is not this case. No, it's possible. Excuse me. Assuming it were, you seem to be suggesting that there is some enhanced need for notice that is also somehow fat bound. And if that's the suggestion, how would we ever craft a rule even short of recognizing and do process right here that would be workable? The rule for departures under 32-h and burns is fat specific. So there's no, and really if you don't have the facts, how do you prepare to combat this evidence? You don't have to. You can go ahead, just follow that. It seems to me that it's a simple one, a reaction of my part

. But the fact that you describe is one in which I can well imagine a reviewing court saying, you know, the sentencing judge certainly should have allowed a continuum so it was an abusive discretion not to. And you take care of that case by case. And I wonder if that isn't the approach rather than some overall constitutional approach saying you always have to have notice. Excuse me. That takes care of the situation. Is this one, is the case before us one, which reaches a hypothetical? It is dangerous to assume that it would be taken care of without a role. It is possible that a panel could see it as an abusive discretion, but it is also possible that they could not. As for this case, the... Well, but Judge Paulic has asked an excellent question. And taking that question even further, I mean, are we obligated first to look to some non-constitutional resolution? It's before we reach your due process, are you? I don't know unless this court is already declaring to extend burns to this context, then role 32H doesn't speak of variances. So I'm not aware at this juncture of any other... Well, let's not just talk about this court for background purposes. Can you cite me to an opinion of any court in the field that has recognized a due process right to advance notice in this context? I have a list of cases which require notice, and I know one of them says that if it is a matter or rather under the guidelines, it's no different. Because under the guidelines, you have all these guidelines out there that speak of departures, and list all the grounds on which departures could come. Just as for variances, you have the 3553A. That does not mean answering my question. No, but I think in answer your question, I am unaware of the case. I am unaware of it. The problem with the case lawyer under if I may, frankly, it's a mess

. Because in the case of dealing with whether there should be notice or not, some of these circuits, and I'm probably saying the third circuit is not one of them, they don't even differentiate between variances and departures. And some of them just take 32H at face value, and some of them just say if you required for departures, why not for variances. So I would really encourage this court to strike out on its own in this manner, and I think we have a novel situation here, and I think it requires independent thinking by this court. The issue of problem. We do not regard this as something that implicates the due process clause. Does that make it really just a matter once again for the criminal rules committee? I think that it is a due process problem, because when you don't know what you have to dance in the evidence, and I think that the hypothetical I presented is not an unreasonable one, but these are the other justifications for a need for notice. First of all, they need to defend second about accuracy, judicial economy. It defendants get advanced notice of a district court's intent to depart upward. That means that they can prepare for it, they can defend, and I might not be here today, appealing this and increasing the court's otherwise ready for a verdict. So, I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that I think, well above the guidelines, they do so by reason of the variance, and that I will not be reporting from the guidelines. And then you set forth the fact that it was simple. Totally, we've done it

. Does that scenario assume that the district court gave whatever skimp reason it gave on the record or not? You knew just what the judge was going to say, and he told you. So, you argue against it, did that happen? Did that happen? What's right? What would you have done differently? See, I can understand your hypothetical, which I don't sense the thing is very good, because I can't conceive that the court would be granted. I can't conceive that the court would be granted. I can't continue it's to come out with it, but I can understand what you would have done there. What would you have done there? There were factors about the girl in her relationship with the parents, and the way the parents came in there and said that this affected their lives and the girl was depressed, and that it was affecting her relationship with the parents. There was evidence defense counsel knew I have to show that the relationship was never very good to begin with with the parents. Also, the fact that the district court said that this was because he was a police officer, I think defense counsel could have argued, look, they're two scenarios. There's a scenario where a police officer is doing work, legitimate work, good work, and get sidetracked with bad motives and bad events. And there's another scenario where a policeman sets out to use his position, the authority of his uniform and his badge, to try to stalk young girls and obtain relationships with him. Defense counsel could have shown this was not the latter situation, and the fact that he was a police officer did not warrant this huge variance. Those are two scenarios that we could have combated this with. The problem with this too, if we're not requiring advanced notice, it's all the more reason why there has to be this extreme scrutiny and the reasons have to be compelling. The reasons were not compelling here. All the district court said, and he said it at least twice, this is an I quote, totally unacceptable. The fact that it's totally unacceptable is why he was prosecuted in the first place. It's why he faced a sentence of 57 to 71 months. Totally unacceptable is not the kind of compelling reason and rationale you need. The vice-president is not the typical offender. No, he's a police officer. Doesn't that provide the district court with a significant fact from which he might want to deviate from what would otherwise be the guideline? Not necessarily your honor. Of course, a police officer does have responsibility, but that was accounted for in the guideline calculation. Also, you're right. Two A, three point two B, PSR paragraph 20

. Two level increase because the girl was entrusted to his authority and it says in the PSR because he was a policeman. It was accounted for in the guideline calculations. Not accounted for in the guidelines, though. It is not accounted for the guidelines as far as I know. My recollection is that what the application notes speaks to and enumerates are people in custodial and caretaking roles and specifically enumerates people like parents and relatives and guardians, but nobody mentions a police officer. That's how it was used to that iteration. It was used here in paragraph 20 and it says the two points and I quote, while he acted in the capacity as a police officer slash police chief. You're reading from the PSR. And that's what the district court went with. But that's not what I'm talking about. I'm talking about whether or not we're determining substantive unreasonableness. We can look through the guidelines and say the guidelines accounted for. It did your honor because he would not have had the girl in his custody and control if he were not a policeman. Parents turned to have first assistance with a wayward child. So yes, it is. And when defense council pointed that out in the district court, the district court did not deny that it was accounted for, but just that still was a policeman. We've got to go higher. Any issues, question? In your brief, I found it very difficult to follow. You said that the district was at the point of the bill, so the court was unuseable as well as the next post-part. It's a creative argument. Thank you very much. I too was trying to figure out how a guideline is beforehand can be written. I'll explain it in a minute

. I just confused with the two when I reviewed this record. And it took me quite a while to decipher it in several conversations with the trial council. It is a creative argument. Frankly, your honor, it didn't drive the sentence here. Which are the sentence was the variance? I mean, even if we get down to the lower guy, I mean, I should ask this question. It's always about to write something. Can we say it well? This is a band of the sorry, but I couldn't follow. I couldn't understand how the guideline that was in effect at the time of the crime, applying it could be an exposed factor. Quite a waste of it. It's confusing. Judge Greenberg, could we simply write that dog won't hunt? You think maybe that would be the case? I think I'll go the other way around. I'm happy to explain it. I'm not sure if I make signals here. Do you want to hear or don't you? I don't know if I can take it. It's not your strongest argument. I didn't think that you were on it. I don't want to torture anyone. You can perhaps clear up one thing for me. The court had paid 107 of the appendix. I'm sorry, the appendix. Yeah. Okay. Yes? In explaining the sentence, there's a

... After Mr. Hackney has talked about the Kendrick case, we get the court. Let me just add, as to the position of trust, I've already considered that in dealing with the factors for the PSI and for the police count there under. And then goes on to say, I don't know what else to say. Did you understand that reference to the position of trust? To be a reference to the point you were making a little while before? I did. I did, Your Honor, and that is why when I said the district court did not deny that this was accounted for in the guideline computation, that is what I based it on, that it was accepting the representations in the PSR with regard to the enhancement in paragraph 20. And that's what makes it all the more indefensible what the district court did, because there's practically an admission that the police officer's status is already factored into the guideline computation and then a variance on top of it. And the Kendrick case is the same one which was argued earlier, just to clarify that for the court. The district court really provided scant reasoning. We'll have you back on the bubble. Thank you. I appreciate the indulgence, Your Honor. I think I went beyond the bill. No, it's time. But I won't ask for a bottle of water. We don't pay careful attention to the red light as I think everybody knows. May I please the court, Laura, or went from the U.S. Attorney's Office from the Western District on behalf of the government. This court should affirm the sense issued by the district court to Mr. Osborne's recent report

. And I'd like to start with the vampire nation issue. Is the court's probably aware of the government's position when vampire nation was argued before this court and I had the pleasure of doing that was that notice should be required. And it is also true that the vampire nation does not discuss the due process problem. Before I discuss that with regard to this case, I would just like to bring the court up to speed on what's going on with the notice issue. If you're not aware there are two cases that have petitions for cert pending before the Supreme Court. If you're aware of the issue of notice to the Supreme Court, in one of the cases, I'm familiar with the briefing, the government has taken the position that the issue is before the rules committee and should be resolved by the rules committee as opposed to the Supreme Court decision. You need to notice for the variant. Right, notice for the variant. That's the holding of vampire nation that were reserved for today. The court is so sure. No, both the petitions, once we allow the two months for the fifth, they're still pending. I was not aware of that, but I asked the question about the rules committee because I was on it when we adopted 32 Hs. It's my understanding that the issue is with the rules committee. With regard to this case, I think the vampire nation squarely applies for a couple of different reasons. There's no dispute for Mr. Osborne that the information provided at the hearing by the victims was no different than what was in the PSR. The complaint in the briefs is that it brought an emotional appeal that the district court then rely upon to marry. So we have two points here. One is there's no new information, so there's no question that we don't have the hypotheticals that were presented. There was nothing there that he could have disputed factually. What he could have disputed was the emotional side of it, and nothing is pretty clear that the crime victims' rights act provides the opportunity to allocate just as it dependent has and to a vote and let the court know of the impact of the case. In this particular case, that's what happened, and there's absolutely nothing on this record to indicate that those statements drove this variance. There's nothing in the statement of reasons, and in fact it's the opposite, not only were the facts in the PSR and already known to the court, the district court at one point said, I'm ready to sentence, and Penn happy stood up and said, wait, we've got to hear from the victims first, and can the victims go before I defend an allocute? And then we get to sentencing with Penn objects to the sentence, the district court goes back and says, don't forget, we have a plea before we had the sentencing, and I made it abundantly clear to the parties that I could go up the statutory announcement in this case, that the guidelines are advisory, that no decision has been made, etc

., etc. So there was nothing in this particular case that we take this over the line to a due process violation. Do you think the court could have said, look, I'm going to be court, and then reach this sentence, and then it was part of the whole thing, instead of saying, well, it's the variance, it's the value of the court. Well, I suppose he could have, I mean, there was no motions for departure made, and I know at least one circuit, the four circuit is held, that you do have to depart before you go to a variance. So I suppose that's a possibility, in which case, you know, I'm not sure if we'd be in any different position, other than we'd have more guidelines law to apply to whether the variance was, excuse me, whether the departure was proper. But in this particular case, I think that another reason for a firmance is not only do you have really no issue with the victim impact statements, but also the statement of reasons. And I recognize that it is not the most detailed statement of reasons, and I would reiterate, Mr. Everhart mentioned earlier, that we would hope that, as these cases come back, the district judges do provide more reasoning and more explanation of what's going on. I mean, that's not the kind of thing you can give, like, or the court statements. I once heard years ago that the real basis for the sentences, that your man, the defendant, and therefore society is going to get even more of them. You know, you can put all the icing on it, you'll want, that's why the sentence is really angry. And, you know, I just wonder whether it's just sort of fluff. Well, if you put all the icing on it, what would I take? Look at this saying that that sentence is law enough, but if it was law, it would be too law. And I think that's part of the point I want to make to the panel is, is that if we go back to Cooper, Cooper tells us, you've got to remember the difference out to district courts. You have to remember that the sentences hearing they're done under the efficiencies of, you know, people coming, they're upset, the defendants have sat, those types of emotional factors, the case load, etc. But we're left with the standard that this court's left to apply, which is substantive reason for us. That's what applies in this case. That's the question that's before you. And if you have to apply due difference to the district court that's there, what does reason will this need? And Cooper tells us, it's not, we're not going to take form over substance. And if you go back to the record in this case, the PSR, which was adopted by the district court, it's ten of the findings. And the information, you know, it was brought out and believed by the elements were met. We know a lot about what this district court said. He mentioned if you make clear on the record that it was the offense, the nature and hairpaces of the offense, the defender and the seriousness of the offense. And you can go through what happened in this case. You have a 14-year-old, obviously, seriously by this person. That's what he pled guilty to. He used the computer as sexual relationship with her. He knew that she was a troubled individual. Problems with the law. That's how he met her. He was a police officer. He went in to help. Instead of protecting, he exploited. He had done this before. He admitted that he had sex in his police vehicle with one other child victim, one other minor. And you have all these factors with the deal. And that's what happened in this case. That's what the district court was looking at. And as far as the argument goes, the guidelines were kind of twice. That's a maritalist argument. And here's why. First of all, Judge Smith, you're absolutely correct. The custody add-on was because he was allowed to visit the child victim when she was in juvenile detention. The PSR does mention while he was in a police uniform. That's true. But he did not receive an add-on for simply because it was police uniform

. And you can go through what happened in this case. You have a 14-year-old, obviously, seriously by this person. That's what he pled guilty to. He used the computer as sexual relationship with her. He knew that she was a troubled individual. Problems with the law. That's how he met her. He was a police officer. He went in to help. Instead of protecting, he exploited. He had done this before. He admitted that he had sex in his police vehicle with one other child victim, one other minor. And you have all these factors with the deal. And that's what happened in this case. That's what the district court was looking at. And as far as the argument goes, the guidelines were kind of twice. That's a maritalist argument. And here's why. First of all, Judge Smith, you're absolutely correct. The custody add-on was because he was allowed to visit the child victim when she was in juvenile detention. The PSR does mention while he was in a police uniform. That's true. But he did not receive an add-on for simply because it was police uniform. It was because they said, you have permission to take her out in your car. You have her permission to go visit her. That's what that guy add-on applies to. The babysitter, you know, guardian, custodian setting. And in this particular case, that was applied. But there was no wrong little victim enhancement. There was no position of trust enhancement. And the guidelines are only one factor in the 3553 analysis. And the district court knew when they decided, that you're going to go back and apply these 3553A factors on top of the guidelines using the guidelines as one factor, knowing full well the sentencing reform act, directed the sentencing commission to craft the guidelines with 3553A in mind. The fact that there are already there, the fact that the guidelines are there, does not change the reasonable analysis. And the rights are decision. And in the king decision of this court, this court is shod away from appropriately, I think, articulating any per se rules about, you know, brevity, about, you know, it's outside the, it's a variance that the variance per se leads to anything. The fact that something's on in the guidelines can't per se change anything because there's supposed to be in the guidelines and there's supposed to be added on, you go from the general to the specific, to get to an ultimate sentence. Someone, I'll complete your sentence. That's fine. I'm going to walk around. I'm, I'm, I'm, I have no difficulty recognizing what you said in, in the PSI, there's an awful lot of information. But the judge had to work with. What I find something of a puzzle though, and perhaps you can help me out, is when you start at page 104 of the appendix, when the judge says the reasons for the court sentence is as follows, and then follow through 104 and 105. And, and up to the top of 104 and 105, I find very little except a power phrases of 3553. I agree with you, Art. And as I said at the beginning, this is not the most developed record that you're ever going to see and hopefully it's time goes on. And, and you in the US Attorney's Office would also like to see a more developed record than some of what we've seen and this may be an example

. It was because they said, you have permission to take her out in your car. You have her permission to go visit her. That's what that guy add-on applies to. The babysitter, you know, guardian, custodian setting. And in this particular case, that was applied. But there was no wrong little victim enhancement. There was no position of trust enhancement. And the guidelines are only one factor in the 3553 analysis. And the district court knew when they decided, that you're going to go back and apply these 3553A factors on top of the guidelines using the guidelines as one factor, knowing full well the sentencing reform act, directed the sentencing commission to craft the guidelines with 3553A in mind. The fact that there are already there, the fact that the guidelines are there, does not change the reasonable analysis. And the rights are decision. And in the king decision of this court, this court is shod away from appropriately, I think, articulating any per se rules about, you know, brevity, about, you know, it's outside the, it's a variance that the variance per se leads to anything. The fact that something's on in the guidelines can't per se change anything because there's supposed to be in the guidelines and there's supposed to be added on, you go from the general to the specific, to get to an ultimate sentence. Someone, I'll complete your sentence. That's fine. I'm going to walk around. I'm, I'm, I'm, I have no difficulty recognizing what you said in, in the PSI, there's an awful lot of information. But the judge had to work with. What I find something of a puzzle though, and perhaps you can help me out, is when you start at page 104 of the appendix, when the judge says the reasons for the court sentence is as follows, and then follow through 104 and 105. And, and up to the top of 104 and 105, I find very little except a power phrases of 3553. I agree with you, Art. And as I said at the beginning, this is not the most developed record that you're ever going to see and hopefully it's time goes on. And, and you in the US Attorney's Office would also like to see a more developed record than some of what we've seen and this may be an example. Without a doubt, and we're also struggling with how we encourage that to happen when we're actually within trial assistance or in court. And, Judge Smith would know is a judge sometimes all attorneys are, are hesitant and erupt, and we, we agree with you completely. It's, it's not exactly what we would like to see either. But in this particular case, well, sometimes it even varies across from a judge to judge. Isn't that the true? I, I think in this particular case, I agree with you entirely that this judge should have been more locations perhaps. But, let's bear in mind the facts of this case and what was going on here. We had the victim's parents in the courtroom. Some suggestion that there was media concerns about her identity, the child victims identity being known. Statements, and even in the PSR that the child victim had been harassed because of this her behavior and her actions with the police officer. It could very well be, and I recognize that this is not a record. But one thing that could have driven the decision of the district court to not, assuming a conscious decision was made, to not go into detail what he said, the facts and circumstances of this case, the seriousness of your offense. Is that he didn't want to drag out one more time for everyone to hear. He was a police officer. He became chief of police. This was an ongoing thing. It wasn't a situational offense. It was pretty disturbing factual information. I think we can all agree that the offense is disturbing. And perhaps that led to the decision of, let's just keep it as you know, benign as we can mentioning the factors and linking it back to this defendant to explain to everyone, because defendant knows what's in the PSR or parties know what's in the PSR. And that could have driven it. With that said, I really can't explain why it was not developed more fully. Well, since we seem to be in agreement that it's desirable for sentencing judges to say what's on their mind. And how does the court of appeals C2 with that objective is implemented except in a situation like this to tell a sentencing judge to try again and give us an explanation

. Without a doubt, and we're also struggling with how we encourage that to happen when we're actually within trial assistance or in court. And, Judge Smith would know is a judge sometimes all attorneys are, are hesitant and erupt, and we, we agree with you completely. It's, it's not exactly what we would like to see either. But in this particular case, well, sometimes it even varies across from a judge to judge. Isn't that the true? I, I think in this particular case, I agree with you entirely that this judge should have been more locations perhaps. But, let's bear in mind the facts of this case and what was going on here. We had the victim's parents in the courtroom. Some suggestion that there was media concerns about her identity, the child victims identity being known. Statements, and even in the PSR that the child victim had been harassed because of this her behavior and her actions with the police officer. It could very well be, and I recognize that this is not a record. But one thing that could have driven the decision of the district court to not, assuming a conscious decision was made, to not go into detail what he said, the facts and circumstances of this case, the seriousness of your offense. Is that he didn't want to drag out one more time for everyone to hear. He was a police officer. He became chief of police. This was an ongoing thing. It wasn't a situational offense. It was pretty disturbing factual information. I think we can all agree that the offense is disturbing. And perhaps that led to the decision of, let's just keep it as you know, benign as we can mentioning the factors and linking it back to this defendant to explain to everyone, because defendant knows what's in the PSR or parties know what's in the PSR. And that could have driven it. With that said, I really can't explain why it was not developed more fully. Well, since we seem to be in agreement that it's desirable for sentencing judges to say what's on their mind. And how does the court of appeals C2 with that objective is implemented except in a situation like this to tell a sentencing judge to try again and give us an explanation. Part of the reason for requiring, I take it, part of the reason for requiring sentencing judges to enlarge on what they're doing is so that the court of appeals can have more material with which to make a judgment as to whether this is reasonable or not. But I ask this question arguing against interest because when I remember that I have a sentencing judge, then the last thing I want is to have to Smith and Judge Greenberg lay down rules as to what I'm supposed to do with. Okay, and that is the concern that I think I tried to address earlier on that this court has really tried not to come forward to per se rules. And I think that's why. So I think to to affirm in this case the court doesn't need to go back any further than Cooper Cooper told us it's form of a substance or substance. Now I've got that backwards. It's a different district court. And you look at the total record before the district court. The district court told us what it was relying upon the nature and circumstances of the effects and the offender and the seriousness of the offense. That information is well before the district court. Well, for this court record, but Mr. when you would agree with you not that while in the wake of Cooper, we probably should not lay down for the rules that at least as a reviewing court what we all know is when we don't have enough. We don't have to establish a rule that informs this court that when it looks at a record, we simply conclude that doesn't tell us now. We don't know what animated ascents and judge to do what he did. You agree with that? Well, I don't agree that there's not enough here for you to make that determination. With regard to how you tell district judges how to more fully animate their decisions, I would have firted the panel and had it to get that across because so far in all honesty, we're seeing records where we truly wish there was more. And believe there should be more. Don't work in really the same. I just wonder if that is. Well, I guess in this particular case, he could have gone back and listed off, ticked off the factors. He was a police officer. He did tick off the statutory factors, which is precisely the problem here. There is very, very little beyond simply a paraphrasing his judge's poll

. Part of the reason for requiring, I take it, part of the reason for requiring sentencing judges to enlarge on what they're doing is so that the court of appeals can have more material with which to make a judgment as to whether this is reasonable or not. But I ask this question arguing against interest because when I remember that I have a sentencing judge, then the last thing I want is to have to Smith and Judge Greenberg lay down rules as to what I'm supposed to do with. Okay, and that is the concern that I think I tried to address earlier on that this court has really tried not to come forward to per se rules. And I think that's why. So I think to to affirm in this case the court doesn't need to go back any further than Cooper Cooper told us it's form of a substance or substance. Now I've got that backwards. It's a different district court. And you look at the total record before the district court. The district court told us what it was relying upon the nature and circumstances of the effects and the offender and the seriousness of the offense. That information is well before the district court. Well, for this court record, but Mr. when you would agree with you not that while in the wake of Cooper, we probably should not lay down for the rules that at least as a reviewing court what we all know is when we don't have enough. We don't have to establish a rule that informs this court that when it looks at a record, we simply conclude that doesn't tell us now. We don't know what animated ascents and judge to do what he did. You agree with that? Well, I don't agree that there's not enough here for you to make that determination. With regard to how you tell district judges how to more fully animate their decisions, I would have firted the panel and had it to get that across because so far in all honesty, we're seeing records where we truly wish there was more. And believe there should be more. Don't work in really the same. I just wonder if that is. Well, I guess in this particular case, he could have gone back and listed off, ticked off the factors. He was a police officer. He did tick off the statutory factors, which is precisely the problem here. There is very, very little beyond simply a paraphrasing his judge's poll. He's put another statutory 3553 effect. If we were that. Well, not precisely because he didn't simply, as I've seen in some cases, just read off 3533A. In this case, he started off with on page 102. He starts off with a brief summary. I'm going to explain to you why I'm ruling this way in a lab run, elaborate on it more fully later on. He says, your conduct is totally unacceptable, especially since you were a police officer and you deserve that doubling of the guideline range in my opinion for the opinions I will share with you in a moment. He goes back and several times mentions it's the events, it's the seriousness of the events, it's your characteristics. And I suppose one way to approach it would be is that you have to link facts to factors. That would be one way to say it's not going to be enough for this court review unless you tell us what facts you're relying on. I think that it's record it's pretty clear what facts have been relied on. But if the court decides that it needs to have it once that clear, those cases in the future, that would be one round to follow. If there are no further questions. Thank you very much. Thank you. You know, this girl had a question for you. Yes, sir. The all of the point of the appeal, of course, of this appeal. I'm sorry, could you hear me? Please, I... This question starts with factual premise. The all of the point of this appeal I suppose is to get your client a shorter sentence

. He's put another statutory 3553 effect. If we were that. Well, not precisely because he didn't simply, as I've seen in some cases, just read off 3533A. In this case, he started off with on page 102. He starts off with a brief summary. I'm going to explain to you why I'm ruling this way in a lab run, elaborate on it more fully later on. He says, your conduct is totally unacceptable, especially since you were a police officer and you deserve that doubling of the guideline range in my opinion for the opinions I will share with you in a moment. He goes back and several times mentions it's the events, it's the seriousness of the events, it's your characteristics. And I suppose one way to approach it would be is that you have to link facts to factors. That would be one way to say it's not going to be enough for this court review unless you tell us what facts you're relying on. I think that it's record it's pretty clear what facts have been relied on. But if the court decides that it needs to have it once that clear, those cases in the future, that would be one round to follow. If there are no further questions. Thank you very much. Thank you. You know, this girl had a question for you. Yes, sir. The all of the point of the appeal, of course, of this appeal. I'm sorry, could you hear me? Please, I... This question starts with factual premise. The all of the point of this appeal I suppose is to get your client a shorter sentence. Certainly. Okay, so now I'm trying to visualize what happens. We say, well, the statement of reasons is inadequate. And we're going to set it back. So we set it back. They gave the sentence. Now the judge comes up and goes over these things in greater detail. What I suppose you figure what happens then is, they don't say, okay, now that I've brought over this in detail, I realize that the sentence should have been shorter. That's how I... I mean, you know, it reminds me one time I left when I wrote the opinion. I wrote an opinion reversing a summary judgment when the eve of a non-jury trial, finding that there was a dispute of facts, and then it went back to the judge who had just granted some judgment. And later on, I found out that two weeks later the trial was conducted. Guess how it came out. I mean, it's... I think my point, this is an exercise. And there in Old Max and Melod is not compelling useless act, who works to the right. Yeah, I thought of it at the time, but I'm seriously what's going on? This record is poor. And the district court, it's not clear if the district court had thought in advance a bearing upward. If it was the spur of the moment thing, or why? Our thought on this is that the district court probably did not provide concrete reasons to give that better record, because it couldn't

. Certainly. Okay, so now I'm trying to visualize what happens. We say, well, the statement of reasons is inadequate. And we're going to set it back. So we set it back. They gave the sentence. Now the judge comes up and goes over these things in greater detail. What I suppose you figure what happens then is, they don't say, okay, now that I've brought over this in detail, I realize that the sentence should have been shorter. That's how I... I mean, you know, it reminds me one time I left when I wrote the opinion. I wrote an opinion reversing a summary judgment when the eve of a non-jury trial, finding that there was a dispute of facts, and then it went back to the judge who had just granted some judgment. And later on, I found out that two weeks later the trial was conducted. Guess how it came out. I mean, it's... I think my point, this is an exercise. And there in Old Max and Melod is not compelling useless act, who works to the right. Yeah, I thought of it at the time, but I'm seriously what's going on? This record is poor. And the district court, it's not clear if the district court had thought in advance a bearing upward. If it was the spur of the moment thing, or why? Our thought on this is that the district court probably did not provide concrete reasons to give that better record, because it couldn't. This is not a serial child molester. It seems to be more of an isolated incident. And the mere fact that he was a policeman didn't warrant it. So we believe that when it goes back and you really argue it again, and the judge that asked to really set forth the fact that the judge may come up with a sentence short of a year. Yes, and also... So this is not... You think this is not necessarily an exercise? It's certainly not your honor. And the other aspect of it is that Sedancing Council is prepared to go in and argue more specifically, more concretely, and more vigorously knowing what has already transferred. And it's why your real issue here, your major issue is the substantive unreasonable circumstances. It has the most impact on Mr. Osper, and certainly, but this question of notice is something that impacts all of our clients and seeing what has happened here, spritting to us as an office, I think. Let me ask you this question. If there was no Sedancing Council where there was a name set, could you have made this argument? In other words, it's got to and it inherently... There's some question, my mind is the one, the guy wants the good things on the other hand, they do give... You know, some kind of a concept of what things ought to be to make me argue, but could you have made this if there was no calculation of Sedancing Council? There was no federal argument, wouldn't it? I don't think so, because again, this is a defendant with zero criminal history points

. This is not a serial child molester. It seems to be more of an isolated incident. And the mere fact that he was a policeman didn't warrant it. So we believe that when it goes back and you really argue it again, and the judge that asked to really set forth the fact that the judge may come up with a sentence short of a year. Yes, and also... So this is not... You think this is not necessarily an exercise? It's certainly not your honor. And the other aspect of it is that Sedancing Council is prepared to go in and argue more specifically, more concretely, and more vigorously knowing what has already transferred. And it's why your real issue here, your major issue is the substantive unreasonable circumstances. It has the most impact on Mr. Osper, and certainly, but this question of notice is something that impacts all of our clients and seeing what has happened here, spritting to us as an office, I think. Let me ask you this question. If there was no Sedancing Council where there was a name set, could you have made this argument? In other words, it's got to and it inherently... There's some question, my mind is the one, the guy wants the good things on the other hand, they do give... You know, some kind of a concept of what things ought to be to make me argue, but could you have made this if there was no calculation of Sedancing Council? There was no federal argument, wouldn't it? I don't think so, because again, this is a defendant with zero criminal history points. And this is defendant who timely... No, no. He didn't even go... We don't have history points. You know, where's no... I look at the prior record if you don't have guidelines and you see the history, the defendant. You also look at factors such as whether the defendant has timely steps to the plate and acknowledge responsibility. There wasn't even an indictment in this case. He waived indictment and was charged by information. He didn't make the government go to the trouble and expense of indicting him for the grand jury. He just said, okay, I've done something wrong, give me my punishment. And I think those were things in a non-guide mind system that would have kept him well below 12 years. Chris, this been a penalty that I think is beyond what most criminal defense paid because he was a police officer. I assume he uses his job, his pension and all that. It's in the most defendants of criminal cases. You know, they don't have these kind of factors. They're rather a job, they're here

. And this is defendant who timely... No, no. He didn't even go... We don't have history points. You know, where's no... I look at the prior record if you don't have guidelines and you see the history, the defendant. You also look at factors such as whether the defendant has timely steps to the plate and acknowledge responsibility. There wasn't even an indictment in this case. He waived indictment and was charged by information. He didn't make the government go to the trouble and expense of indicting him for the grand jury. He just said, okay, I've done something wrong, give me my punishment. And I think those were things in a non-guide mind system that would have kept him well below 12 years. Chris, this been a penalty that I think is beyond what most criminal defense paid because he was a police officer. I assume he uses his job, his pension and all that. It's in the most defendants of criminal cases. You know, they don't have these kind of factors. They're rather a job, they're here. It's in the record genre you said, despondent when the charges came to light that he attempted suicide because he knew the damage to his reputation, the end of his career and everything else. So yes, it has been a very stiff penalty for him and perhaps, stiffer than it would be for some defendants who have nothing to lose, frankly. You know, for this very, actually, it's a stiff penalty for about a year. And I think that's a 3553A factor, too. And if anything, maybe it should have gone for a townwork variance rather than an awkward one. That once he's finished with his sentence, it's going to be very hard for him to rebuild his life and to get employment in a career. And if anything, you should have had a townwork variance and not an upward variance. And in fact, defense council was arguing for a downward variance based on some of these factors. Thank you very much. Thank you very much. Thank you very much. We'll take the case under the document. Thank you. And we'll ask the clerk to join the court. Please rise. This court is in Narnisco, June 14th, at 10 a.m.

You went for the day. You must say, versus Osper. It's good off you enjoyed it so much you decided to stay here. It proves that double headers have not been abolished. Right. Not a well-tested district, a pencil lady. Pets several double headers over my 16 years. It's always enjoyable. Make please the court. Your honor is good morning. For the record, my name is Karen, serianny Gerlock, and I am the attorney for the appellant in this case, Mr. David Osper. At this point, I ask the court's permission to reserve three minutes of rebuttal. Thank you, your honor. In this case, the district court imposed a sentence of 12 years. That 12-year sentence represented an upward variance two times greater than the uppermost end of the advisory guideline range of 57 to 71 months. The case laws are very clear that when the sentence variances are so substantially greater than the advisory guideline range, they warrant extra scrutiny. The purpose of the extra scrutiny is twofold. Who the least extra scrutiny? This course. The purpose of that extra scrutiny is twofold. It must be determined first of all whether there were compelling, quote-unquote, compelling facts and circumstances to support a variance so great. Second of all, it must be determined whether the district court has provided an adequate explanation of why a guideline sentence within the advisory range would not serve the goals of 3553A. The record here under extra scrutiny or even a very surface superficial scrutiny does not show either of these two factors. The sum total of what the district court said as its rationalization and justification for some greater variance was that first of all Mr. Osperm was a police officer. So is the thrust of your attack on the substantive reasonableness or unreasonableness of the sentence? Yes, it is your honor. Because I fully expected you to lead off with your due process right to advance notice argument. That is a big part of your honor because when the variance is not going to require notice. You would agree that would you not have the fair point of view? I personally believe that the vampire nation case is not squarely on all fours with this. Well, it is not squarely on all fours because we did not deal with a new process issue. Exactly. We dealt with rule 32. Exactly. In rule 32h says specifically, Departure's quote unquote, it doesn't speak of variances. So this court found an empire nation that in the instance of upward variances that rule 32h doesn't require notice. It didn't address the due process situation. I'm sorry to have just wanted to. You know all the courts are on the table and when you know if you set the whole question, I remember writing it not about the presidential thing saying there's going to be cases when it's not so easy to tell whether there was a variance or a portrait. But that particular case that just said variance. But you know all the courts are on the table. You do not anymore than you know for a departure. The guy lying around. Booker didn't change the scenery and entire landscape enough that when you walk in with a client, you don't think you can, you don't advise him or her that the nearest guy is the limit. Anything can happen here. If the court will indulge me for one moment, may I propose a hypothetical which feels straights? Why is this so dangerous and frightening? We had victim statements at the sentencing. Council received very late notice of the victim statements. Imagine this scenario. The victim impact statements came from the girl's father and her guardian. Imagine a scenario where the guardian and the father had come into court and said to the judge, Mr. Osberg impregnated this girl. Mr. Osberg gave this girl a sexually transmitted disease. Mr. Osberg's nudging defense counsel saying, I've had a bad sent to me. I could not have been prednated her. I don't carry any sexually transmitted diseases. And my doctor could prove all this. Defense counsel jumps up and says, your honor this is impossible. We need to continue. We need to get a doctor and we don't have any notice. And Judge Schwab could have very easily said too bad. All right. Well, that clearly is not this case. No, it's possible. Excuse me. Assuming it were, you seem to be suggesting that there is some enhanced need for notice that is also somehow fat bound. And if that's the suggestion, how would we ever craft a rule even short of recognizing and do process right here that would be workable? The rule for departures under 32-h and burns is fat specific. So there's no, and really if you don't have the facts, how do you prepare to combat this evidence? You don't have to. You can go ahead, just follow that. It seems to me that it's a simple one, a reaction of my part. But the fact that you describe is one in which I can well imagine a reviewing court saying, you know, the sentencing judge certainly should have allowed a continuum so it was an abusive discretion not to. And you take care of that case by case. And I wonder if that isn't the approach rather than some overall constitutional approach saying you always have to have notice. Excuse me. That takes care of the situation. Is this one, is the case before us one, which reaches a hypothetical? It is dangerous to assume that it would be taken care of without a role. It is possible that a panel could see it as an abusive discretion, but it is also possible that they could not. As for this case, the... Well, but Judge Paulic has asked an excellent question. And taking that question even further, I mean, are we obligated first to look to some non-constitutional resolution? It's before we reach your due process, are you? I don't know unless this court is already declaring to extend burns to this context, then role 32H doesn't speak of variances. So I'm not aware at this juncture of any other... Well, let's not just talk about this court for background purposes. Can you cite me to an opinion of any court in the field that has recognized a due process right to advance notice in this context? I have a list of cases which require notice, and I know one of them says that if it is a matter or rather under the guidelines, it's no different. Because under the guidelines, you have all these guidelines out there that speak of departures, and list all the grounds on which departures could come. Just as for variances, you have the 3553A. That does not mean answering my question. No, but I think in answer your question, I am unaware of the case. I am unaware of it. The problem with the case lawyer under if I may, frankly, it's a mess. Because in the case of dealing with whether there should be notice or not, some of these circuits, and I'm probably saying the third circuit is not one of them, they don't even differentiate between variances and departures. And some of them just take 32H at face value, and some of them just say if you required for departures, why not for variances. So I would really encourage this court to strike out on its own in this manner, and I think we have a novel situation here, and I think it requires independent thinking by this court. The issue of problem. We do not regard this as something that implicates the due process clause. Does that make it really just a matter once again for the criminal rules committee? I think that it is a due process problem, because when you don't know what you have to dance in the evidence, and I think that the hypothetical I presented is not an unreasonable one, but these are the other justifications for a need for notice. First of all, they need to defend second about accuracy, judicial economy. It defendants get advanced notice of a district court's intent to depart upward. That means that they can prepare for it, they can defend, and I might not be here today, appealing this and increasing the court's otherwise ready for a verdict. So, I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that's a very good question. I think that I think, well above the guidelines, they do so by reason of the variance, and that I will not be reporting from the guidelines. And then you set forth the fact that it was simple. Totally, we've done it. Does that scenario assume that the district court gave whatever skimp reason it gave on the record or not? You knew just what the judge was going to say, and he told you. So, you argue against it, did that happen? Did that happen? What's right? What would you have done differently? See, I can understand your hypothetical, which I don't sense the thing is very good, because I can't conceive that the court would be granted. I can't conceive that the court would be granted. I can't continue it's to come out with it, but I can understand what you would have done there. What would you have done there? There were factors about the girl in her relationship with the parents, and the way the parents came in there and said that this affected their lives and the girl was depressed, and that it was affecting her relationship with the parents. There was evidence defense counsel knew I have to show that the relationship was never very good to begin with with the parents. Also, the fact that the district court said that this was because he was a police officer, I think defense counsel could have argued, look, they're two scenarios. There's a scenario where a police officer is doing work, legitimate work, good work, and get sidetracked with bad motives and bad events. And there's another scenario where a policeman sets out to use his position, the authority of his uniform and his badge, to try to stalk young girls and obtain relationships with him. Defense counsel could have shown this was not the latter situation, and the fact that he was a police officer did not warrant this huge variance. Those are two scenarios that we could have combated this with. The problem with this too, if we're not requiring advanced notice, it's all the more reason why there has to be this extreme scrutiny and the reasons have to be compelling. The reasons were not compelling here. All the district court said, and he said it at least twice, this is an I quote, totally unacceptable. The fact that it's totally unacceptable is why he was prosecuted in the first place. It's why he faced a sentence of 57 to 71 months. Totally unacceptable is not the kind of compelling reason and rationale you need. The vice-president is not the typical offender. No, he's a police officer. Doesn't that provide the district court with a significant fact from which he might want to deviate from what would otherwise be the guideline? Not necessarily your honor. Of course, a police officer does have responsibility, but that was accounted for in the guideline calculation. Also, you're right. Two A, three point two B, PSR paragraph 20. Two level increase because the girl was entrusted to his authority and it says in the PSR because he was a policeman. It was accounted for in the guideline calculations. Not accounted for in the guidelines, though. It is not accounted for the guidelines as far as I know. My recollection is that what the application notes speaks to and enumerates are people in custodial and caretaking roles and specifically enumerates people like parents and relatives and guardians, but nobody mentions a police officer. That's how it was used to that iteration. It was used here in paragraph 20 and it says the two points and I quote, while he acted in the capacity as a police officer slash police chief. You're reading from the PSR. And that's what the district court went with. But that's not what I'm talking about. I'm talking about whether or not we're determining substantive unreasonableness. We can look through the guidelines and say the guidelines accounted for. It did your honor because he would not have had the girl in his custody and control if he were not a policeman. Parents turned to have first assistance with a wayward child. So yes, it is. And when defense council pointed that out in the district court, the district court did not deny that it was accounted for, but just that still was a policeman. We've got to go higher. Any issues, question? In your brief, I found it very difficult to follow. You said that the district was at the point of the bill, so the court was unuseable as well as the next post-part. It's a creative argument. Thank you very much. I too was trying to figure out how a guideline is beforehand can be written. I'll explain it in a minute. I just confused with the two when I reviewed this record. And it took me quite a while to decipher it in several conversations with the trial council. It is a creative argument. Frankly, your honor, it didn't drive the sentence here. Which are the sentence was the variance? I mean, even if we get down to the lower guy, I mean, I should ask this question. It's always about to write something. Can we say it well? This is a band of the sorry, but I couldn't follow. I couldn't understand how the guideline that was in effect at the time of the crime, applying it could be an exposed factor. Quite a waste of it. It's confusing. Judge Greenberg, could we simply write that dog won't hunt? You think maybe that would be the case? I think I'll go the other way around. I'm happy to explain it. I'm not sure if I make signals here. Do you want to hear or don't you? I don't know if I can take it. It's not your strongest argument. I didn't think that you were on it. I don't want to torture anyone. You can perhaps clear up one thing for me. The court had paid 107 of the appendix. I'm sorry, the appendix. Yeah. Okay. Yes? In explaining the sentence, there's a... After Mr. Hackney has talked about the Kendrick case, we get the court. Let me just add, as to the position of trust, I've already considered that in dealing with the factors for the PSI and for the police count there under. And then goes on to say, I don't know what else to say. Did you understand that reference to the position of trust? To be a reference to the point you were making a little while before? I did. I did, Your Honor, and that is why when I said the district court did not deny that this was accounted for in the guideline computation, that is what I based it on, that it was accepting the representations in the PSR with regard to the enhancement in paragraph 20. And that's what makes it all the more indefensible what the district court did, because there's practically an admission that the police officer's status is already factored into the guideline computation and then a variance on top of it. And the Kendrick case is the same one which was argued earlier, just to clarify that for the court. The district court really provided scant reasoning. We'll have you back on the bubble. Thank you. I appreciate the indulgence, Your Honor. I think I went beyond the bill. No, it's time. But I won't ask for a bottle of water. We don't pay careful attention to the red light as I think everybody knows. May I please the court, Laura, or went from the U.S. Attorney's Office from the Western District on behalf of the government. This court should affirm the sense issued by the district court to Mr. Osborne's recent report. And I'd like to start with the vampire nation issue. Is the court's probably aware of the government's position when vampire nation was argued before this court and I had the pleasure of doing that was that notice should be required. And it is also true that the vampire nation does not discuss the due process problem. Before I discuss that with regard to this case, I would just like to bring the court up to speed on what's going on with the notice issue. If you're not aware there are two cases that have petitions for cert pending before the Supreme Court. If you're aware of the issue of notice to the Supreme Court, in one of the cases, I'm familiar with the briefing, the government has taken the position that the issue is before the rules committee and should be resolved by the rules committee as opposed to the Supreme Court decision. You need to notice for the variant. Right, notice for the variant. That's the holding of vampire nation that were reserved for today. The court is so sure. No, both the petitions, once we allow the two months for the fifth, they're still pending. I was not aware of that, but I asked the question about the rules committee because I was on it when we adopted 32 Hs. It's my understanding that the issue is with the rules committee. With regard to this case, I think the vampire nation squarely applies for a couple of different reasons. There's no dispute for Mr. Osborne that the information provided at the hearing by the victims was no different than what was in the PSR. The complaint in the briefs is that it brought an emotional appeal that the district court then rely upon to marry. So we have two points here. One is there's no new information, so there's no question that we don't have the hypotheticals that were presented. There was nothing there that he could have disputed factually. What he could have disputed was the emotional side of it, and nothing is pretty clear that the crime victims' rights act provides the opportunity to allocate just as it dependent has and to a vote and let the court know of the impact of the case. In this particular case, that's what happened, and there's absolutely nothing on this record to indicate that those statements drove this variance. There's nothing in the statement of reasons, and in fact it's the opposite, not only were the facts in the PSR and already known to the court, the district court at one point said, I'm ready to sentence, and Penn happy stood up and said, wait, we've got to hear from the victims first, and can the victims go before I defend an allocute? And then we get to sentencing with Penn objects to the sentence, the district court goes back and says, don't forget, we have a plea before we had the sentencing, and I made it abundantly clear to the parties that I could go up the statutory announcement in this case, that the guidelines are advisory, that no decision has been made, etc., etc. So there was nothing in this particular case that we take this over the line to a due process violation. Do you think the court could have said, look, I'm going to be court, and then reach this sentence, and then it was part of the whole thing, instead of saying, well, it's the variance, it's the value of the court. Well, I suppose he could have, I mean, there was no motions for departure made, and I know at least one circuit, the four circuit is held, that you do have to depart before you go to a variance. So I suppose that's a possibility, in which case, you know, I'm not sure if we'd be in any different position, other than we'd have more guidelines law to apply to whether the variance was, excuse me, whether the departure was proper. But in this particular case, I think that another reason for a firmance is not only do you have really no issue with the victim impact statements, but also the statement of reasons. And I recognize that it is not the most detailed statement of reasons, and I would reiterate, Mr. Everhart mentioned earlier, that we would hope that, as these cases come back, the district judges do provide more reasoning and more explanation of what's going on. I mean, that's not the kind of thing you can give, like, or the court statements. I once heard years ago that the real basis for the sentences, that your man, the defendant, and therefore society is going to get even more of them. You know, you can put all the icing on it, you'll want, that's why the sentence is really angry. And, you know, I just wonder whether it's just sort of fluff. Well, if you put all the icing on it, what would I take? Look at this saying that that sentence is law enough, but if it was law, it would be too law. And I think that's part of the point I want to make to the panel is, is that if we go back to Cooper, Cooper tells us, you've got to remember the difference out to district courts. You have to remember that the sentences hearing they're done under the efficiencies of, you know, people coming, they're upset, the defendants have sat, those types of emotional factors, the case load, etc. But we're left with the standard that this court's left to apply, which is substantive reason for us. That's what applies in this case. That's the question that's before you. And if you have to apply due difference to the district court that's there, what does reason will this need? And Cooper tells us, it's not, we're not going to take form over substance. And if you go back to the record in this case, the PSR, which was adopted by the district court, it's ten of the findings. And the information, you know, it was brought out and believed by the elements were met. We know a lot about what this district court said. He mentioned if you make clear on the record that it was the offense, the nature and hairpaces of the offense, the defender and the seriousness of the offense. And you can go through what happened in this case. You have a 14-year-old, obviously, seriously by this person. That's what he pled guilty to. He used the computer as sexual relationship with her. He knew that she was a troubled individual. Problems with the law. That's how he met her. He was a police officer. He went in to help. Instead of protecting, he exploited. He had done this before. He admitted that he had sex in his police vehicle with one other child victim, one other minor. And you have all these factors with the deal. And that's what happened in this case. That's what the district court was looking at. And as far as the argument goes, the guidelines were kind of twice. That's a maritalist argument. And here's why. First of all, Judge Smith, you're absolutely correct. The custody add-on was because he was allowed to visit the child victim when she was in juvenile detention. The PSR does mention while he was in a police uniform. That's true. But he did not receive an add-on for simply because it was police uniform. It was because they said, you have permission to take her out in your car. You have her permission to go visit her. That's what that guy add-on applies to. The babysitter, you know, guardian, custodian setting. And in this particular case, that was applied. But there was no wrong little victim enhancement. There was no position of trust enhancement. And the guidelines are only one factor in the 3553 analysis. And the district court knew when they decided, that you're going to go back and apply these 3553A factors on top of the guidelines using the guidelines as one factor, knowing full well the sentencing reform act, directed the sentencing commission to craft the guidelines with 3553A in mind. The fact that there are already there, the fact that the guidelines are there, does not change the reasonable analysis. And the rights are decision. And in the king decision of this court, this court is shod away from appropriately, I think, articulating any per se rules about, you know, brevity, about, you know, it's outside the, it's a variance that the variance per se leads to anything. The fact that something's on in the guidelines can't per se change anything because there's supposed to be in the guidelines and there's supposed to be added on, you go from the general to the specific, to get to an ultimate sentence. Someone, I'll complete your sentence. That's fine. I'm going to walk around. I'm, I'm, I'm, I have no difficulty recognizing what you said in, in the PSI, there's an awful lot of information. But the judge had to work with. What I find something of a puzzle though, and perhaps you can help me out, is when you start at page 104 of the appendix, when the judge says the reasons for the court sentence is as follows, and then follow through 104 and 105. And, and up to the top of 104 and 105, I find very little except a power phrases of 3553. I agree with you, Art. And as I said at the beginning, this is not the most developed record that you're ever going to see and hopefully it's time goes on. And, and you in the US Attorney's Office would also like to see a more developed record than some of what we've seen and this may be an example. Without a doubt, and we're also struggling with how we encourage that to happen when we're actually within trial assistance or in court. And, Judge Smith would know is a judge sometimes all attorneys are, are hesitant and erupt, and we, we agree with you completely. It's, it's not exactly what we would like to see either. But in this particular case, well, sometimes it even varies across from a judge to judge. Isn't that the true? I, I think in this particular case, I agree with you entirely that this judge should have been more locations perhaps. But, let's bear in mind the facts of this case and what was going on here. We had the victim's parents in the courtroom. Some suggestion that there was media concerns about her identity, the child victims identity being known. Statements, and even in the PSR that the child victim had been harassed because of this her behavior and her actions with the police officer. It could very well be, and I recognize that this is not a record. But one thing that could have driven the decision of the district court to not, assuming a conscious decision was made, to not go into detail what he said, the facts and circumstances of this case, the seriousness of your offense. Is that he didn't want to drag out one more time for everyone to hear. He was a police officer. He became chief of police. This was an ongoing thing. It wasn't a situational offense. It was pretty disturbing factual information. I think we can all agree that the offense is disturbing. And perhaps that led to the decision of, let's just keep it as you know, benign as we can mentioning the factors and linking it back to this defendant to explain to everyone, because defendant knows what's in the PSR or parties know what's in the PSR. And that could have driven it. With that said, I really can't explain why it was not developed more fully. Well, since we seem to be in agreement that it's desirable for sentencing judges to say what's on their mind. And how does the court of appeals C2 with that objective is implemented except in a situation like this to tell a sentencing judge to try again and give us an explanation. Part of the reason for requiring, I take it, part of the reason for requiring sentencing judges to enlarge on what they're doing is so that the court of appeals can have more material with which to make a judgment as to whether this is reasonable or not. But I ask this question arguing against interest because when I remember that I have a sentencing judge, then the last thing I want is to have to Smith and Judge Greenberg lay down rules as to what I'm supposed to do with. Okay, and that is the concern that I think I tried to address earlier on that this court has really tried not to come forward to per se rules. And I think that's why. So I think to to affirm in this case the court doesn't need to go back any further than Cooper Cooper told us it's form of a substance or substance. Now I've got that backwards. It's a different district court. And you look at the total record before the district court. The district court told us what it was relying upon the nature and circumstances of the effects and the offender and the seriousness of the offense. That information is well before the district court. Well, for this court record, but Mr. when you would agree with you not that while in the wake of Cooper, we probably should not lay down for the rules that at least as a reviewing court what we all know is when we don't have enough. We don't have to establish a rule that informs this court that when it looks at a record, we simply conclude that doesn't tell us now. We don't know what animated ascents and judge to do what he did. You agree with that? Well, I don't agree that there's not enough here for you to make that determination. With regard to how you tell district judges how to more fully animate their decisions, I would have firted the panel and had it to get that across because so far in all honesty, we're seeing records where we truly wish there was more. And believe there should be more. Don't work in really the same. I just wonder if that is. Well, I guess in this particular case, he could have gone back and listed off, ticked off the factors. He was a police officer. He did tick off the statutory factors, which is precisely the problem here. There is very, very little beyond simply a paraphrasing his judge's poll. He's put another statutory 3553 effect. If we were that. Well, not precisely because he didn't simply, as I've seen in some cases, just read off 3533A. In this case, he started off with on page 102. He starts off with a brief summary. I'm going to explain to you why I'm ruling this way in a lab run, elaborate on it more fully later on. He says, your conduct is totally unacceptable, especially since you were a police officer and you deserve that doubling of the guideline range in my opinion for the opinions I will share with you in a moment. He goes back and several times mentions it's the events, it's the seriousness of the events, it's your characteristics. And I suppose one way to approach it would be is that you have to link facts to factors. That would be one way to say it's not going to be enough for this court review unless you tell us what facts you're relying on. I think that it's record it's pretty clear what facts have been relied on. But if the court decides that it needs to have it once that clear, those cases in the future, that would be one round to follow. If there are no further questions. Thank you very much. Thank you. You know, this girl had a question for you. Yes, sir. The all of the point of the appeal, of course, of this appeal. I'm sorry, could you hear me? Please, I... This question starts with factual premise. The all of the point of this appeal I suppose is to get your client a shorter sentence. Certainly. Okay, so now I'm trying to visualize what happens. We say, well, the statement of reasons is inadequate. And we're going to set it back. So we set it back. They gave the sentence. Now the judge comes up and goes over these things in greater detail. What I suppose you figure what happens then is, they don't say, okay, now that I've brought over this in detail, I realize that the sentence should have been shorter. That's how I... I mean, you know, it reminds me one time I left when I wrote the opinion. I wrote an opinion reversing a summary judgment when the eve of a non-jury trial, finding that there was a dispute of facts, and then it went back to the judge who had just granted some judgment. And later on, I found out that two weeks later the trial was conducted. Guess how it came out. I mean, it's... I think my point, this is an exercise. And there in Old Max and Melod is not compelling useless act, who works to the right. Yeah, I thought of it at the time, but I'm seriously what's going on? This record is poor. And the district court, it's not clear if the district court had thought in advance a bearing upward. If it was the spur of the moment thing, or why? Our thought on this is that the district court probably did not provide concrete reasons to give that better record, because it couldn't. This is not a serial child molester. It seems to be more of an isolated incident. And the mere fact that he was a policeman didn't warrant it. So we believe that when it goes back and you really argue it again, and the judge that asked to really set forth the fact that the judge may come up with a sentence short of a year. Yes, and also... So this is not... You think this is not necessarily an exercise? It's certainly not your honor. And the other aspect of it is that Sedancing Council is prepared to go in and argue more specifically, more concretely, and more vigorously knowing what has already transferred. And it's why your real issue here, your major issue is the substantive unreasonable circumstances. It has the most impact on Mr. Osper, and certainly, but this question of notice is something that impacts all of our clients and seeing what has happened here, spritting to us as an office, I think. Let me ask you this question. If there was no Sedancing Council where there was a name set, could you have made this argument? In other words, it's got to and it inherently... There's some question, my mind is the one, the guy wants the good things on the other hand, they do give... You know, some kind of a concept of what things ought to be to make me argue, but could you have made this if there was no calculation of Sedancing Council? There was no federal argument, wouldn't it? I don't think so, because again, this is a defendant with zero criminal history points. And this is defendant who timely... No, no. He didn't even go... We don't have history points. You know, where's no... I look at the prior record if you don't have guidelines and you see the history, the defendant. You also look at factors such as whether the defendant has timely steps to the plate and acknowledge responsibility. There wasn't even an indictment in this case. He waived indictment and was charged by information. He didn't make the government go to the trouble and expense of indicting him for the grand jury. He just said, okay, I've done something wrong, give me my punishment. And I think those were things in a non-guide mind system that would have kept him well below 12 years. Chris, this been a penalty that I think is beyond what most criminal defense paid because he was a police officer. I assume he uses his job, his pension and all that. It's in the most defendants of criminal cases. You know, they don't have these kind of factors. They're rather a job, they're here. It's in the record genre you said, despondent when the charges came to light that he attempted suicide because he knew the damage to his reputation, the end of his career and everything else. So yes, it has been a very stiff penalty for him and perhaps, stiffer than it would be for some defendants who have nothing to lose, frankly. You know, for this very, actually, it's a stiff penalty for about a year. And I think that's a 3553A factor, too. And if anything, maybe it should have gone for a townwork variance rather than an awkward one. That once he's finished with his sentence, it's going to be very hard for him to rebuild his life and to get employment in a career. And if anything, you should have had a townwork variance and not an upward variance. And in fact, defense council was arguing for a downward variance based on some of these factors. Thank you very much. Thank you very much. Thank you very much. We'll take the case under the document. Thank you. And we'll ask the clerk to join the court. Please rise. This court is in Narnisco, June 14th, at 10 a.m